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Meta sues FTC, seeking to block new rules for children’s data

Meta filed a lawsuit challenging the constitutionality of the Federal Trade Commission’s structure Wednesday, two days after a federal judge refused to block the commission from prohibiting the tech giant from monetizing all youth data and limiting its use of facial recognition technology.

The commission announced the proposed new restrictions in May, seeking to build on changes made in a 2020 privacy order which the FTC says Meta has not complied with. The FTC specifically alleges that Meta has misled parents about their ability to control who talks to their children on the Messenger Kids app and misrepresented the amount of access it gives app developers to private user data.

Meta’s proactive lawsuit targeting the FTC is unusual but not unprecedented. In August 2022 the data broker Kochava filed a preemptive suit against the commission. The FTC’s countersuit remains in litigation.

Objecting to the FTC’s effort to modify the terms of the 2020 order, Meta’s lawsuit alleges the agency’s actions are an “obvious power grab.”

The suit asserts that Meta will not argue the FTC’s actions on the merits, but instead holds that the structure of the commission as a whole makes its latest effort to rein in the tech giant unconstitutional.

The FTC has a “dual role as prosecutor and judge,” violating the constitution’s due process clause, and takes actions that should be decided by a jury, violating the Seventh Amendment, among other constitutional violations, the lawsuit contends.

The 2020 privacy order stemmed from Meta’s actions in the Cambridge Analytica scandal, which exposed the data of as many as 87 million people. The commission imposed a record $5 billion fine in addition to the regulations the FTC says Meta — the parent company of Facebook and Instagram — has since flouted.

Meta is now seeking a preliminary injunction to prevent the FTC from moving forward with its update to the 2020 order.

Privacy advocates called the lawsuit’s legal theory “far-fetched” and a “kitchen sink constitutional attack,” saying Meta is trying to run out the clock to block the proposed changes.

“A hearing before the FTC will confirm that Meta continues to mishandle personal data and put the privacy and safety of minors at risk, despite multiple orders not to do so,” John Davisson, litigation director at the Electronic Privacy Information Center, said in a statement.

Advocates for children’s online safety also condemned the lawsuit, saying the commission’s actions come in response to the tech giant violating the Children’s Online Privacy Protection Act (COPPA), which requires parents to sign off before websites gather and use personal information from kids under age 13.

Calling Meta a “serial privacy offender,” Josh Golin, the executive director of Fairplay, a nonprofit advocating for childrens’ privacy and safety, said in a statement that it’s not surprising Meta is launching this “brazen attack on the Commission, especially given the company may have $200 billion in COPPA liability.”

Meta defended the suit, saying the FTC’s “unilateral attempt to rewrite our privacy settlement agreement raises serious and important issues about the FTC’s constitutional authority and Meta’s due process rights.”

It noted that the federal judge’s Monday decision paving the way for the FTC to move ahead with the proposed new rules did not touch on constitutional questions, which the tech giant considers to be substantial.

“The FTC shouldn’t be the prosecutor, judge, and jury in the same case,” the spokesperson said.

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Suzanne Smalley

Suzanne Smalley

is a reporter covering privacy, disinformation and cybersecurity policy for The Record. She was previously a cybersecurity reporter at CyberScoop and Reuters. Earlier in her career Suzanne covered the Boston Police Department for the Boston Globe and two presidential campaign cycles for Newsweek. She lives in Washington with her husband and three children.